Tuesday, July 01, 2008

Juror to Judge: What Was the Point?

Juror to Judge: What Was the Point?

At Sentencing Law and Policy, Doug Berman points to yesterday's examination by The Washington Times of the case of Antwuan Ball, who faces 40 years in prison over a $600 drug deal. Federal prosecutors charged the D.C. man with a massive racketeering, drug conspiracy and murder indictment, with marching orders from former Attorney General Alberto R. Gonzales to pursue the death penalty. But jurors in November 2007 acquitted him on every count, save for a $600, half-ounce crack-cocaine deal seven years ago. That should have been good news for Ball, except for this:

Federal prosecutors are asking U.S. District Judge Richard W. Roberts to send Ball to prison for 40 years, basing their request partly on charges that were never filed or conduct the jury either rejected outright or was never asked to consider.

Known as acquitted and uncharged conduct sentencing, the practice is raising a sharp question among legal scholars: Should federal judges dole out tougher sentences based on accusations that jurors rejected or never heard during trial?

Of particular interest to blogger Berman in highlighting this story is what he describes as a "remarkable" letter from one of the jurors who acquitted Ball of most charges. In a May 16 letter to U.S. District Judge Richard W. Roberts, "Juror #6" writes:

As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.

What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney's office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case. That is how you instructed your jury in this case to perform and for good reason.

It is a fascinating case and The Washington Times explores it in depth. It also provides these additional documents:

It is the dream of so many Biglaw lawyers: To simplify, to downsize, to forgo big bucks in favor of personal fulfillment. And it was the dream the former Washington, D.C., Biglaw partner had pursued -- at least until his plans were foiled by last week's Massachusetts Appeals Court opinion in the case, C.D.L. v. M.M.L. The unidentified lawyer had it all, graduating from law school near the top of his class, clerkships with a federal circuit court and then the Supreme Court, a private practice in energy law with the D.C. office of a large Wall Street firm, average annual income of $700,000, a large house in Maryland and private schools for the kids. Eventually the travel and stress got to him and he began to contemplate downsizing. He and his wife came up with a plan for him to leave his firm and seek an alternative career, but still earn sufficient income to keep their lifestyles comfortable.

But then the couple's relationship began to go south. Well, actually, she went north, to Massachusetts, while he stayed south, in D.C. Then, in January 2001, without any discussion with his wife, the husband quit his lucrative law firm job. Ever since, he has been unemployed, living off his assets and savings, making only "minimal attempts" to obtain other work by applying for low-paying jobs for which he has no experience.

Unemployment is good work, if you can afford it. But then the judge in the couple's divorce trial ordered the husband to pay his former wife alimony of $711.54 a week, reasoning that even though the husband was not working, he had the ability to earn an income of at least $200,000, more than sufficient to meet the needs of the wife and the couple's youngest child. The husband appealed, arguing that the divorce judge erred in attributing income to him at this level. Unfortunately, he found no sympathy with the Appeals Court, which noted that he "has taken no steps to diminish" his own comfortable lifestyle and that he has the "historical capacity to earn at a level close to four times the attributed income."

We discern no error. The judge considered these issues and made such findings as were necessary, all of which are supported by the evidence. In her findings, the judge considered employment prospects and potential income commensurate with the husband's education, training, and employment history, including his past earnings. Reduced to essentials, the judge found that the husband has an ability to obtain employment in several fields, including the law, which would yield sufficient income.

So much for changing careers. In this case, the lawyer's leap off the treadmill may have been an exercise in futility. But then again, he has had the last seven years off.

On Friday, Peggy A. Quince was sworn in as chief justice of the Florida Supreme Court, becoming the first black woman to lead that state's court system -- or any branch of government in Florida. This is not her first time making history. Fifteen years ago, she became the first black woman appointed to a Florida district court of appeal. "One of the ways you give back to your community is by being there and being visible," Quince said after her swearing in. "Young people find it's not all about whether you are a rap star or a baseball player or any of those kinds of careers. But there are also other careers available that can make a difference."

The 60-year-old jurist was raised in Virginia by her father, a longshoreman, and attended segregated schools growing up. She graduated from Howard University in 1970 and then attended law school at Catholic University. Her first legal job was in Washington, D.C., as a rent-control hearing officer. In 1977, she went into private practice in Norfolk, Va., and then moved to Florida a year later, opening an office in Bradenton. In 1980, she joined the state Attorney General's Office, handling appeals in the Criminal Division and eventually becoming Tampa bureau chief. Gov. Lawton Chiles named her to the 2nd District Court of Appeal in 1993. In 1998, Chiles and Gov.-elect Jeb Bush named her to the Supreme Court.

An editorial in the St. Petersburg Times says that Justice Quince will face difficult challenges during her two-year term as chief.

Praised for her quick mind and engaging personality during a ceremony Friday, she takes the gavel at a time when the court is on the verge of remarkable turnover and faces considerable challenges. Two of the seven justices are resigning, and two more will reach mandatory retirement age during her two-year term. The chief justice also acts as the chief administrative officer of the judicial system, and Quince takes charge in an era when the Legislature has to be constantly prodded to adequately fund the judicial branch. The work of outgoing Chief Justice R. Fred Lewis, who will remain on the court, in pressing for social services and aid for the mentally ill also will have to continue.

Already, she has created a task force to compile oral and written histories of black lawyers in Florida, says another report. In comments at her swearing in, former Florida Attorney General Bob Butterworth praised her for breaking through the dual glass ceilings of race and gender, adding, "You bring to the center chair not only wisdom and integrity but a big heart."

Since he was rich, it can't have been the lure of a free ride. You would think, with his anti-war activism, he would have been a very attractive candidate for admission to Harvard (or another top-ranked law school) if only his LSAT and GPA were at all within range.

Cautioning that she meant "no offense to Boston College," she conjectured that Kerry's attendance there was likely related to his "mental capacity." No offense taken, Ann ... if only I could understand your point.

That, of course, was water under the bridge. But now Thomas H. Lipscomb revisits Kerry's choice of law school in a post at The Huffington Post, suggesting that it was not Kerry's academic incapacity that sent him to BC, but his much-debated military record. The fact that Kerry went to BC over one of those more desirable schools indicates he had something to hide, Lipscomb suggests.

Why had a Boston snob like John Kerry gone to a subway law school like Boston College? A source who had been on the Harvard Law School admissions board revealed that with Kerry's bad military record he was turned down for admission though clearly qualified because they didn't want to admit someone who they thought would be unable to pass the bar.

Subway law school? In three words, Lipscomb demeans both a law school and a public-transit system. Who's the snob in this scenario? Roger Parloff writes this week at Fortune's Legal Pad blog about MBTA employees' offense taken over a series of restaurant ads that touted how "fresh" its fish are by insulting MBTA workers. ("This conductor has a face like a halibut.") Has the MBTA been alerted to Lipscomb's below-the-belt jab? And it's not even accurate -- BC Law is more than three miles from the closest subway stop. Heck, it might as well be in Wisconsin, where Althouse teaches.

For now, I can only hope that someday a BC Law grad will be elected president, and I will no longer have to feel like a second-class citizen. Meanwhile, I will continue reading that subway blog, Eagleionline, which tipped me off to Lipscomb's post.

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